Gordon v Scottish Criminal Cases Review Commission (Scotland) [2017] UKSC 20

The appellant, convicted of rape in 2002 based partly on admissions made during a police interview without legal representation, sought to have his case referred back to the High Court following Cadder. The Supreme Court upheld the Commission's refusal, finding it properly considered the interests of justice and finality.

Facts

The appellant was convicted of rape in September 2002 following a trial in which the Crown relied on admissions he had made during a police interview conducted on 13 August 2001. At that interview, conducted without prior access to a solicitor in accordance with the practice and law at the time, the appellant admitted having had sexual intercourse with the complainer but maintained it was consensual. This admission provided the necessary corroboration of the complainer’s evidence that intercourse had occurred. Because of his admission, forensic analysis of semen on vaginal swabs was not pursued. He was sentenced to five years’ imprisonment, which has long since been served.

The appellant’s first appeal was refused in 2004. A second appeal, following a reference by the Scottish Criminal Cases Review Commission (“the Commission”), was refused in May 2010, with the High Court (per Lord Carloway) finding ample evidence supporting the jury’s verdict. Shortly thereafter, on 26 October 2010, the Supreme Court delivered judgment in Cadder v HM Advocate [2010] UKSC 43, holding that suspects must generally be afforded access to legal advice prior to police interview.

The appellant applied to the Commission to refer his case back to the High Court on Cadder grounds. The Commission accepted that a miscarriage of justice might have occurred but concluded it was not in the interests of justice to make a reference, having regard to section 194C(2) of the Criminal Procedure (Scotland) Act 1995, as amended by the 2010 Act.

Issues

The central issue was whether the Commission erred in law in taking into account the following considerations when applying the “interests of justice” test under section 194C of the 1995 Act:

• That the appellant had not disputed the truth of what he told the police at interview;
• That the appellant had not challenged the fairness of the police interview or its use at trial;
• That the appellant had made use of the interview at trial to advance his defence of consent.

Arguments

Appellant’s submissions

Counsel for the appellant argued that the Commission had wrongly taken into account, or attached undue weight to, the time elapsed since conviction. It was said that the appellant could not have challenged the fairness of the interview before Cadder. It was further submitted that his reliance on the interview at trial had been forced upon him because the interview was already before the jury. The appellant relied on M v HM Advocate; Gallacher v HM Advocate [2012] HCJAC 121 and Chamberlain-Davidson v HM Advocate [2013] HCJAC 54 as illustrating a different and proper approach.

Respondent’s position

The Commission maintained that the considerations it took into account were properly relevant to the interests of justice assessment, particularly the undisputed truth of the admission and the appellant’s reliance on the interview at trial.

Judgment

Lord Reed, with whom Lord Kerr, Lord Clarke, Lord Hughes and Lord Hodge agreed, dismissed the appeal.

The Court explained the legislative context. Sections 194C(2) and 194DA were inserted by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, emergency legislation enacted the day after Cadder. The provisions require the Commission to have regard to the need for finality and certainty in the determination of criminal proceedings when deciding whether a reference is in the interests of justice, and confer a corresponding power on the High Court to reject references.

The Court emphasised that these provisions have broader significance than Cadder-type cases. The Commission’s role inherently qualifies finality, justified by the need to address miscarriages of justice surfacing after appeals are exhausted, but finality, certainty, the impact on victims, public confidence in justice, and resource constraints all remain weighty considerations.

On the first matter, Lord Reed agreed with Lord Pentland’s reasoning that the appellant had never disputed the truth of what he told the police and was seeking to use a subsequent change in the law to exclude evidence of an undisputed fact. It would not normally be in the interests of justice to quash a conviction merely because, under the law as now understood, there was a lack of admissible corroboration of a fact never in dispute. Other factors, including the availability of the semen sample for potential DNA analysis (which had been forgone because of the admission), reinforced this conclusion.

On the second matter, the Court held that pre-Cadder, there were already well-established grounds on which the fairness of an interview or its use at trial could be challenged. The appellant had not done so over two appeals, and this was plainly relevant.

On the third matter, the Court held that although the interview being before the jury was an existing fact, the appellant had availed himself of the opportunity to put his defence to the jury without exposing himself to cross-examination. That was properly a matter the Commission could weigh.

The Court rejected the suggestion that the Commission’s approach was inconsistent with the High Court’s approach in cases such as M v HM Advocate; Gallacher v HM Advocate and Chamberlain-Davidson v HM Advocate. Citing Lord Justice-General Hamilton, the Court noted that the High Court does not simply duplicate the Commission’s function but reviews for demonstrable failure. The phrase “the interests of justice” requires evaluation, not mechanical application. The other cases relied upon were materially distinguishable: in those cases, the admissions related to issues that remained in dispute, and their veracity was not accepted.

Implications

The decision confirms the broad evaluative nature of the “interests of justice” test under section 194C of the 1995 Act and supports the approach that the Commission may legitimately consider whether the truth of evidence remains undisputed, whether its fairness was challenged at trial or on appeal, and how the accused made use of the evidence in question.

The judgment reinforces the importance of finality and certainty in criminal proceedings, particularly where applicants seek to take advantage of subsequent changes in the law to dislodge convictions that were properly obtained under the law as it stood. The Cadder decision does not automatically warrant references back to the High Court in every case where a pre-Cadder interview supplied corroboration; the wider circumstances must be assessed.

The decision is significant for practitioners advising on applications to the Commission, particularly in cases involving historical convictions affected by subsequent jurisprudential developments. It clarifies that the Commission and the High Court perform distinct functions under sections 194C and 194DA respectively, and that the Commission’s exercise of evaluative judgment will not be lightly impugned in judicial review.

The judgment is limited to the considerations actually challenged on appeal and does not lay down a comprehensive code for the application of the interests of justice test, which the Court expressly recognised cannot be reduced to mechanical application.

Verdict: Appeal dismissed. The Supreme Court held that the Scottish Criminal Cases Review Commission did not err in law in declining to refer the appellant’s case to the High Court of Justiciary, as it had properly taken into account relevant considerations in determining that a reference was not in the interests of justice.

Source: Gordon v Scottish Criminal Cases Review Commission (Scotland) [2017] UKSC 20